• by Erik Sass , Staff Writer @eriksass1, August 23, 2016

Chipotle Mexican Grill’s social media policy for employees illegally constrained their ability to discuss workplace conditions, according to a judgment from the National Labor Relations Board issued last week, which confirms a previous finding by an administrative judge issued earlier this year.

Back in March NLRB judge Susan Flynn ruled that Chipotle violated labor laws by firing an employee at a Havertown, PA restaurant, James Kennedy, for criticizing the company in a social media post in January 2015. After a customer tweeted a thank you for free food, Kennedy responded by tweeting: “@ChipotleTweets, nothing is free, only cheap #labor. Crew members only make $8.50hr how much is that steak bowl really?”

Kennedy later took the tweet down when a supervisor informed him that the company’s social media policy prohibited employees from making “disparaging, false” statements about it online. Several weeks later, he was fired for circulating a petition protesting workers not getting their required breaks.

Flynn ruled that Chipotle’s firing of Kennedy violated labor law because it was prompted by the petition as well as his earlier statements about wages on social media, both of which are considered protected speech under the National Labor Relations Act, guaranteeing the right of employees to discuss workplace conditions and act collectively to seek redress from management. Flynn ordered Chipotle to offer to rehire Kennedy and pay him for lost wages.

The latest NLRB finding did reverse one part of Flynn’s ruling relating to Kennedy’s social media posts: the NLRB commissions ruled that Chipotle hadn’t violated the law by asking Kennedy to delete certain tweets that were deemed offensive, because some of these didn’t concern labor complaints and weren’t concerted actions undertaken with other employees seeking redress. However the NLRB confirmed Flynn’s ruling that Chipotle’s original social media policy, which prohibited “posting incomplete, confidential, or inaccurate information and making disparaging, false, or misleading statements” is illegal.

In addition to ordering Chipotle to rescind this policy, the NLRB is requiring the company to post prominent notices at all its workplaces informing employees that the policy has been rescinded.

Back in 2012 the NLRB warned employers that certain kinds of social media speech by employees are protected against retaliation or prohibition, including specific complaints about their workplace, including for example wages, hours, benefits, or other conditions.